US v. Johnny Fancher

Filing 920090626

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-5187 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOHNNY RAY FANCHER, Defendant - Appellant. Appeal from the United States District Court for the Northern District of West Virginia, at Elkins. Robert E. Maxwell, Senior District Judge. (2:05-cr-00013-REM-JSK-1) Submitted: April 30, 2009 Decided: June 26, 2009 Before TRAXLER and KING, Circuit Judges, and Benson Everett LEGG, Chief United States District Judge for the District of Maryland, sitting by designation. Vacated and remanded by unpublished per curiam opinion. Brian J. Kornbrath, Federal Public Defender, Clarksburg, West Virginia, for Appellant. Sharon L. Potter, United States Attorney, David J. Perri, Robert H. McWilliams, Jr., Assistant United States Attorneys, Wheeling, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: This case is before the court after resentencing on remand. In our previous decision, we found error in the district court's failure to provide advance notice that it was considering accordingly resentencing. 2008). an upward variance Fancher's in sentencing and Fancher. remanded We for vacated sentence United States v. Fancher, 513 F.3d 424 (4th Cir. On remand, the district court provided advance notice that it was again considering an upward variance, conducted the resentencing hearing, and again sentenced Fancher to the statutory maximum 480 months of imprisonment. not, however, provide Fancher an opportunity The court did to address the court prior to the imposition of sentence, as required by Fed. R. Crim. P. 32(i)(4)(A)(ii). the district court did not Counsel for Fancher objected, but take corrective action. Fancher timely appealed. On appeal, Fancher argues that his due process rights were violated by the district court's failure to offer him the opportunity to speak, and that his sentence is unreasonable. The Government concedes that the district court committed reversible error in failing to allow allocution. This court has held that a district court commits plain error if it does not afford the defendant an opportunity to allocute at a resentencing hearing. United States v. Muhammad, 478 F.3d 247, 2 250 (4th Cir. 2007). There is, however, no per se rule of reversal when the district court denies a defendant's right to allocute under Fed. R. Crim. P. 32(i)(4)(A)(ii). Muhammad, 478 F.3d at 249. determine Instead, the court "should examine each case to the error was prejudicial." Id. (quoting whether United States v. Cole, 27 F.3d 996, 999 (4th Cir. 1994)). In because Muhammad, the to court applied to plain error review court's Muhammad failed object the district failure to allow him to allocute. however, counsel to specifically and Id. at 249. to 32. the In this case, lack of an the objected cited Rule opportunity allocute, Therefore, Government has the burden of demonstrating that any error was harmless, which requires a showing that the court's error did not affect Fancher's sentence. 208, 223 (4th Cir. 2005). carry its burden, but United States v. White, 405 F.3d The Government does not attempt to that the District to Court the "acknowledges when to it committed defendant reversible the error neglected on his own afford opportunity speak behalf before imposing sentence." Accordingly, we vacate Fancher's sentence and remand for resentencing. facts and legal We dispense with oral argument because the contentions are adequately presented in the 3 materials before the court and argument would not aid the decisional process. VACATED AND REMANDED 4

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